Thursday, December 5, 2013

DWI Defense Perspective: WHY is it Important that the Police Properly Administer the Field Sobriety Tests?

Outside Field Sobriety Testing with the Ithaca Police Department

In many of the DWI cases that I handle in Upstate New york the police have given the stopped driver a series of tests. BTW You can legally refuse to take these tests (it is not a crime or a violation). Refusing a chemical test (of your breath or blood) does have more serious license consequences.

The Tale of Two Types of Tests

Sometimes these requests are completely non-standardized tests (made up by the police).
They can also request that you take the Standardized Field Sobriety Tests aka the "SFSTS."

Field tests are usually given at roadside. Often these are not video taped in Tompkins, Tioga, Cortland, and Steuben Counties. They are generally recorded in Chemung county. In Broome county there may even be roadside and police station recordings. I have seen them do the tests outside and then inside at the police station. These re-dos can even make or weaken a prosecutor's case based on what can be seen and heard.

The Three Standardized Tests Have to be Administered (GIVEN) Specifically

1. There are ONLY three standardized tests.
2. All the police (law enforcement) in every state MUST give them the same way every time.
3. All the police use the NHTSA (National Highway Traffic Safety Administration) manual.

4. Proper Administration = Validity (see excerpt below from their manual)

"It is necessary to emphasize this validation applies ONLY when:

The tests are administered in the prescribed standardized manner,
The standardized clues are used to assess the suspect's performance,
The standardized criteria are employed to interpret that performance.
IF any one of the standardized field sobriety test elements is changed the Validity is
COMPROMISED!" emphasis is all mine

(P. VIII-19, SFST student manual, HS 178 R9/04)

The standardized field sobriety test are NOT at all flexible. They MUST be administered each time as outlined in this course.

(P. 8, SFST Administrators Guide, HS 178 R1/02)

A Prime Example: The Walk and Turn Field Sobriety Test

Police Steps, Instructions, and Directions for the WAT

First there are Four Pre-instructions: 
Hold Heel- Toe position (while given instructions)
Right foot online (remember this is an imaginary line)
Left foot on line  (some police like to call it a pretend line?)
Arms at side
Remain still until you are told to begin

Number of things to do:

Begin when you are told to
18 steps on an imaginary line (9 forward/ 9 back)
18 counts out loud
18 times to walk using heel to toe (all steps within a ½ inch)
18 times count in sequence (1, 2, 3, 4, etc.)
Arms at your side (on every step)
18 times looking at your feet (on each step)

4 things to do on turn  (to pivot on one foot and 3 pivot steps around)

TWO mistakes (errors), Police call them clues = A Fail

The JOB of Lawyers

Criminal defense attorneys MUST hold the police to their own standards. They have rules and sequences to follow. This helps to assure accuracy and validity in their investigation and charging of various crimes.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 470 blog posts, dozens of articles, and over 450 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.